Not Official Legal Advice for F-1 Students from India

This post is basically what I say to people a few times a week...

Some assumptions –

• You are in F-1 OPT status;

• You work for a private sector employer who will try for an H-1B for you in the H-1B cap lottery;

• You were born in India;

• You are not married, or if married, your spouse is also born in India.

Options –

• Try for H-1B three times in the H-1B cap lottery while you work in F1 OPT and STEM OPT status;

• Try for O-1 if you are not chosen in the H-1B cap lottery (this will require employer support as O-1s require an employer petitioner; but you can pay personally to prepare the case or you can start preparing the case now and hire a private lawyer if you work for a big company that is very slow to do things like this – and yes, it is embarrassing but there are lots of big companies represented by big law firms slow to do things like this);

• If your employer will not support O-1, look for an employer that will or look for a job at a cap-exempt H-1B employer (college, university, or university-affiliated hospital are the best bets).

• I would not recommend EB-1A or EB-1B.  Very few F-1 students are eligible for EB-1A or EB-1B.  But I can review your CV (resume) if you really want. You can also probably find a lawyer willing to do it. It turns out you can find a lawyer willing to do almost anything.

• I don’t recommend EB-2 NIW at this time as you are from India and it won’t help you much in the short term.  If you get chosen in the H-1B cap lottery, then you could potentially go for EB2 NIW at that time (after getting your H-1B). As mentioned above, you could work on building your O-1 case now and hire a private lawyer to do it but you are a student and you probably don’t want to spend the money to do that. [For some reason international students will spend $100k or more to get their degree but not 10% of that to get a work visa. It is a curious thing.] It would be great if your employer would help you. 

• EB-2 NIW can be a self-petition and is generally better than PERM if you are eligible. (I can explain why EB-2 NIW is better in due course if you are chosen in the H-1B cap lottery).

• If O-1 is not viable, for whatever reason, and your company has international operations, then you can get transferred abroad and try again for the H-1B cap lottery or also try to return on a L-1 (ideally blanket L-1).

NOTE: If you were not born in India, or your spouse was not born in India, then you should look at EB-2 NIW now, ASAP - like yesterday!